Citation Nr: 18156400 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 09-32 018 DATE: December 11, 2018 ORDER Entitlement to service connection for a neck disability is granted. Entitlement to service connection for hypertension is denied. An effective date of August 31, 2007, for the grant of service connection for chronic lumbar spine myofascial sprain is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to a higher initial rating for chronic lumbar spine myofascial sprain, rated as 10 percent disabling prior to April 5, 2016, and 20 percent, thereafter, is remanded. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, a neck disability is related to active service. 2. Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of the Veteran’s discharge from service. 3. The August 1992 Board decision that denied the Veteran’s claim for service connection for a low back disorder was final. 4. The Veteran’s claim to reopen service connection for a low back disorder was received by the RO on August 31, 2007. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck disability have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for an effective date of August 31, 2007, for the grant of service connection for chronic lumbar spine myofascial sprain have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1973 to April 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, a February 2013 rating decision of the Appeals Management Center (AMC) in Washington, DC and a February 2014 rating decision from the Montgomery RO. In November 2010 the Veteran testified before the undersigned at a Travel Board hearing. A transcript of the hearing testimony is in the claims file. In May 2011 the Board, in pertinent part, denied the Veteran’s claim to reopen his previously denied application for service connection for a low back disability, and his claims of entitlement to service connection for a neck disability and tinnitus. The Veteran then appealed the Board’s May 2011 decision to the United States Court of Appeals for Veterans Claims (Court), and in a May 2012 Memorandum Decision, the Court vacated the May 2011 Board decision, in part, and remanded these three matters for action consistent with the Court’s determinations. In November 2012, the Board reopened and remanded the claim of entitlement to service connection for a low back disability, and remanded the claims of entitlement to service connection for a neck disability and tinnitus to the RO for additional development. Subsequently, in a February 2013 rating decision, the AMC granted service connection for chronic lumbar spine myofascial sprain. As this represents a total grant of benefits sought on appeal with respect to the claim of entitlement to service connection for a low back disability, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Board remanded the appeal again in August 2013. The Board notes that the Veteran requested a videoconference hearing on his October 2016 VA Form 9, regarding the denial of his bilateral hearing loss and hypertension claims. However, in correspondence dated in May 2017 and August 2017, the Veteran stated he wished to withdraw his request. Accordingly, the Board finds that there remains no outstanding hearing request. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis and hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neck Disability The Veteran contends that his neck disability, diagnosed as chronic cervical spine degenerative disc disease and stenosis is related to two in-service motor vehicle accidents. The Board concludes that, while the Veteran’s neck disability was not diagnosed during service and did not manifest to a compensable degree within the applicable presumptive period, there has been continuity of the same symptomatology since service. In this regard, the Board notes that the Veteran has received intermittent treatment for neck symptomatology since service separation. Notably, he was diagnosed with a cervical strain in August 1989, at which time he discussed his in-service motor vehicle accidents. (The Board notes that the Veteran is service-connected for a low back disorder as related to such motor vehicle accidents, therefore they are conceded). During an August 1990 hearing at the Regional Office, the Veteran testified that he began to periodically see a chiropractor after 1978, who told him he had whip lash. He further testified that he only sought intermittent treatment because he did not have insurance and could not always afford it. Post-service medical records further indicate that in January 1997 the Veteran sought treatment for pain in the left side of his neck and shoulder from Southwood Hospital. He was again diagnosed with cervical strain. A March 2000 Southwood Hospital treatment note revealed persistent neck and back pains. A March 2001 Southwood treatment note provides that the Veteran had pain in the back of his neck for the last two weeks. He was assessed with neck pain and muscle spasm. While no treatment records exist from during the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms from service through the present. The Veteran is competent to report that he experienced symptoms of neck pain during that period, but did not seek treatment because of cost. His statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that he has had neck pain since service. While the January 2013 VA examiner found that his neck disorder was more likely due to the natural aging process, the examiner did not explain the Veteran’s treatment for neck pain over the years since service separation, including in 1989 when he was diagnosed with a cervical strain. Accordingly, as the evidence is at least in equipoise, the Board resolves reasonable doubt in the Veteran’s favor to find that his neck complaints since service are attributable to his current chronic cervical spine degenerative disc disease and stenosis. Hypertension The Board notes at the outset that, while the Veteran seeks service connection for hypertension, he has not asserted that he suffered from this condition during service, and has not asserted any theories as to why he believes his claimed disability is related to service. Additionally, he has not asserted that hypertension had its onset within one year of separation from service, or that he has had continuity of symptomatology of this disability since service. Medical evidence shows that the Veteran has a current diagnosis of hypertension. However, there is no competent evidence of record suggesting a link between the claimed disability and service, or that it manifested to a compensable degree within one year of service separation. Service treatment records are negative for a diagnosis of hypertension or elevated blood pressure readings. Similarly, post-service medical records indicate a blood pressure reading of 130/80 during an August 1989 VA examination, and 119/60 during an October 1991 VA examination. Private treatment records show a diagnosis of hypertension in August 2005; therefore, he is not entitled to service connection for such on a presumptive basis. Moreover, as indicated previously, the Veteran has not alleged a continuity of symptomatology of such since service. Additionally, no treating clinician has ever opined as to the etiology of the Veteran’s hypertension. As stated above, the Veteran also has not posited any theories as to why he believes he is entitled to service connection for hypertension. Given the lack of evidence in this case, there are no grounds to award service connection, or even request a medical examination, for the claimed disability. To the extent that the Veteran’s request for service connection for hypertension can be construed as an assertion that his claimed disability is related to service, he is not competent to make this conclusion as medical expertise is required. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.”). Specifically, as hypertension is not diagnosed by unique and readily identifiable features, it does not involve a simple identification that a layperson is competent to make. Rather, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s own opinion is nonprobative evidence. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, for the reasons outlined above, the Board finds that the preponderance of evidence is against the Veteran’s claim for hypertension. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). Effective Date- Chronic Lumbar Spine Myofascial Sprain The Veteran seeks an effective date prior to September 4, 2007, for the grant of service connection for chronic lumbar spine myofascial sprain. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.§ 5110; 38 C.F.R. § 3.400. There is no provision in either the statute or the regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error was committed in a prior decision, or unless the new and material evidence resulted from receipt of additional relevant military records. See 38 U.S.C. § 5110 (i); 38 C.F.R. §§ 3.105, 3.156(c). Here, the Veteran’s claim for a low back disorder was originally denied in an unappealed August 1992 Board decision. As previously discussed in the Board’s May 2011 decision, the August 1992 Board decision was unappealed and final. On August 31, 2007, VA received the Veteran’s claim to reopen his back disorder. The Board notes that such correspondence bears two VA date stamps-August 31, 2007, and September 4, 2007. Accordingly, while it appears the RO used the later date to assign the Veteran’s effective date, the Board finds that an effective date of August 31, 2007, is instead proper. However, an effective date prior to August 31, 2007, is not warranted. In this regard, given the established finality of the August 1992 Board decision, the effective date of the grant of service connection cannot, by regulation, be earlier than the date of the Veteran’s new claim for the benefit filed after the last, final disallowance of his earlier claim. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(1)(ii). Additionally, neither the Veteran nor his representative has presented an argument that clear and unmistakable error was committed in the original decision, nor have they presented an alternative legal theory for the basis that an earlier effective date is warranted. While the Board is sympathetic to the Veteran, it is bound by the applicable statutes and regulations. 38 U.S.C. § 7104 (c). Therefore, an effective date of August 31, 2007, but no earlier, is warranted for the grant of service connection for chronic lumbar spine myofascial sprain. REASONS FOR REMAND Bilateral Hearing Loss and Tinnitus Here, it appears there are outstanding, private treatment records relevant to the Veteran’s claims for bilateral hearing loss and tinnitus. In this regard, he informed the Agency of Original Jurisdiction (AOJ) that he had received treatment at the Otorhinolaryngology Associates. See February 2014 Notice of Disagreement. The AOJ, in turn, sent the Veteran the appropriate disclosure paperwork to seek to obtain such records, which he returned in March 2014. Despite providing the address and phone number, and having previously provided the name, the AOJ deemed the Veteran’s 21-4142 insufficient and requested he fill out another one, which he failed to do. As only one attempt to obtain authorization from the Veteran to request such records has been made, the Board finds that a follow-up request for authorization is required. Chronic Lumbar Spine Myofascial Sprain Rating The Veteran underwent an April 2016 Disability Benefits Questionnaire (DBQ) examination for evaluation of his lumbar spine. The examiner found that the Veteran was unable to perform repetitive use testing at the time due to “pain, instability, fatigue and reported left lower extremity numbness” but did not attempt to identify the level of functional loss due to repetitive movements after having considered all procurable and assembled medical evidence, to include eliciting relevant information from the Veteran as to the repetitive movements. Such examination is insufficient in view of Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), wherein the United States Court of Appeals for Veterans Claims held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, and the examiner states that he or she is unable to offer such an opinion without resorting to speculation, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare-i.e. the frequency, duration, characteristics, severity, or functional loss, and such opinion cannot be based on the insufficient knowledge of the specific examiner. Accordingly, another examination is warranted. TDIU As the Veteran’s claim for a TDIU is inextricably intertwined with the remanded claims, adjudication must be deferred. The matters are REMANDED for the following action: 1. Take appropriate action to obtain treatment records from the Otorhinolaryngology Associates, identified by the Veteran in the February 2014 Notice of Disagreement. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Schedule the Veteran for a VA examination with an appropriate professional to determine the nature, extent, and severity of his service-connected chronic lumbar spine myofascial sprain. All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion. The examination must include testing results on both active and passive motion, and in weight-bearing and nonweight-bearing. The examiner should assess where pain begins on the Veteran’s initial range of motion and upon repetitive testing. The examiner should also describe any pain, weakened movement, excess fatigability, and incoordination present. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Significantly, the examiner must estimate any functional loss in terms of additional degrees of limited motion of the lumbar spine experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. All opinions expressed should be accompanied by supporting rationale. 3. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.Z., Counsel